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What Is A Gaurdian?



WHAT IS A GUARDIAN?

A guardian is an individual, organization, or State agency that is appointed by the Probate Court in the ward's county of residence and is given the authority to make decisions on behalf of the person. Guardianship must be renewed annually.

WHAT IS A WARD?

When the court has found an individual to be incapacitated, that person is referred to as a Ward. (i.e. ward of the court.)

WHEN IS GUARDIANSHIP NECESSARY?

The purpose of guardianship is to ensure that continuing care is provided for a person, 18 years or older, who is unable to make decisions for him or herself. A disability alone is not sufficient reason for guardianship. The critical factor is that the person must be unable to make or communicate responsible decisions for him/herself. Guardianship can be tailored to meet the particular needs of the individual. On the other hand, guardianship can impose a severe restriction on a person's right to make decisions on matters most of us take for granted, such as legal affairs, medical treatment, and service related issues.

WHAT IS A TEMPORARY GUARDIANSHIP?

The court may appoint temporary guardianship for the following reasons:

1. When a person has no guardian (emergencies).

2. When the current guardian is not effectively performing his/her duties and immediate action is necessary on behalf of the ward.

 

WHAT IS A CONSERVATOR?

A Conservator is an individual or organization appointed by the court to protect and manage the finances and property of a person in order to prevent exploitation or mismanagement of funds.

WHY AREN'T THE PARENTS AUTOMATICALLY THE GUARDIANS OF THEIR ADULT CHILDREN?

The law presumes that all person’s eighteen years of age and older are competent to make their own decisions unless proven otherwise. Parental legal rights end when a child reaches the age of maturity. In order to continue their parental authority after their child turns eighteen, the parents must file for guardianship of their adult child. Either one or both parents may be the guardian(s).

CAN THE GUARDIAN PLACE THE WARD IN A STATE INSTITUTION?

On his/her own authority, the guardian can not. The guardian may apply for the placement of the ward in a State institution. However, other laws and regulations regarding the admission of any person must be followed for the ward just as for anyone else.

WHERE AND HOW CAN GUARDIANSHIP BE REQUESTED?

The Probate Court in the county in which the proposed ward lives is usually the court to which a petition for guardianship is submitted. A physician's or psychologist's report, providing the diagnoses and the actual mental and functional limitations and prognoses which demonstrate the need for the guardianship, must be submitted to the Court. The proposed guardian must also submit a plan detailing how the ward's financial, medical, and other needs will be met.

WHERE CAN I GET ASSISTANCE ABOUT GUARDIANSHIP PROCEDURES?

Many Registers and Clerks of the Probate Court can be very helpful in explaining necessary forms and how to fill them out. Attorneys familiar with guardianship law and procedures could, of course, be of great assistance. Case Managers in agencies may be able to explain general procedures.

WHAT WILL IT COST TO OBTAIN A PRIVATE GUARDIANSHIP?

Forms must be purchased from the court and a filing fee will be assessed. Contact the Probate Court for more information.

WHAT WILL IT COST A RELATIVE OR INTERESTED PERSON TO OBTAIN A PUBLIC GUARDIANSHIP?

Generally, no cost is involved for the relative or interested person when the State petitions for public guardianship. However, as a relative or interested person, you may be asked to spend time with an agency representative to provide appropriate information. Contact the Probate Court for more information.

WHAT SHOULD THE GUARDIAN DO IF HE/SHE IS GOING TO BE UNAVAILABLE TO MAKE DECISIONS ON BEHALF OF THE WARD?

The guardian can give power of attorney to someone else to make emergency decisions in the event of the guardian's absence. However, if the guardian is unable to fulfill his/her role for an extended period of time, the Probate Court should be informed so that an alternate guardian may be appointed.

WHAT IS A POWER OF ATTORNEY?

Power of Attorney is a written document by which a person legally delegates to someone else a part or all of his/her authority to make legal decisions on certain matters on a short or long-term basis. Any person who is able to make his/her own decisions, but who wants to plan for a possible future incapacity, may delegate any part of his/her own decision-making power to someone else through a lasting or "durable" power of attorney, which must be notarized. Power of Attorney is not a form of guardianship.

WHAT HAPPENS IF A GUARDIAN DIES AND THE WARD IS IN CONTINUING NEED OF GUARDIANSHIP?

An interested party must petition the court for the appointment of a successor guardian. If the guardian has designated a successor guardian in his/her will and the ward does not disagree with the selection, and then the successor guardian only needs to file an acceptance with the appropriate Probate Court.

WHAT DO I NEED TO KNOW IF MY WARD BECOMES SERIOUSLY ILL?

Guardians are responsible for making medical decisions on behalf of the ward. When asked to provide consent for medical treatment, it is important that complete explanations of any proposed treatment including expected benefits and possible side effects or complications be provided.

WHAT IS AN ADVANCE DIRECTIVE?

When a person is dying, there are usually important decisions to be made about whether the doctors should continue to keep the person alive using extraordinary life-sustaining procedures, such as cardiopulmonary resuscitation (CPR), artificial respirators, and artificial feeding. The dying person may still be able to give the doctors instructions about treatment. Often, however, the patient is not able to communicate with the doctor because he/she is unconscious, heavily medicated, or otherwise unable to provide informed consent. When this happens, the patient's relatives/guardian may be consulted about what treatment should be given to the patient.

WHAT IS A "DO NOT RESUSCITATE ORDER"?

A "Do Not Resuscitate" (DNR) or No Code order is an instruction to treating medical staff that if a patient's breathing or heartbeat stops, methods to revive the person (e.g. CPR, respirator, and other means of artificial life support) should not be used. The order can specify which methods would be withheld. You will probably be asked to sign a statement indicating your wishes regarding resuscitation and artificial life supports for your ward if he/she is admitted to a medical facility. While there are many factors that go into this decision, including the wishes of the ward, the guardian has the ultimate authority to decide what measures will be carried out.